{"id":485,"date":"2019-03-01T09:33:52","date_gmt":"2019-03-01T09:33:52","guid":{"rendered":""},"modified":"2019-06-07T12:59:00","modified_gmt":"2019-06-07T12:59:00","slug":"australian-administrative-law-6722","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/administrative-law\/australian-administrative-law-6722.php","title":{"rendered":"Issues in Australian Administrative Law"},"content":{"rendered":"

It has been said of the Australian administrative law system that \u2018it suffers from an over complexity, which makes the system confusing to any ordinary observer … There are too many entities involved in the system, and we would be better off with less of them.\u2019<\/strong><\/p>\n

Do you agree? Which of the
\nadministrative law remedies or institutions do you consider to be essential and
\nwhy?<\/strong><\/em><\/p>\n

Administrative law in Australia<\/a> is complex and might be confusing to the ordinary observer, but so are the government and the laws they seek to regulate. It has been said (by an unknown author) that there are too many entities involved in the system and we would be better off with less of them. This paper will argue that most of the entities in the system have been created in response to changes in the government and public expectation of the individual to be protected from government decisions and in doing so have formed an administrative law revolution. The essential administrative law remedies that this paper considers essential are; the judicial, the tribunal, the ombudsman, and the CDDA. The reasoning as to why these institutions and remedies are essential will be discussed using John McMillan\u2019s paper Ten challenges for Administrative law, Cryke and Groves and Weeks. In doing this it will be discovered that there are deficiencies in all administrative law institutions and remedies but that when considered they are mostly effective in dealing with the government and the individual.  <\/p>\n

John Mc Millan identifies ten challenges to
\nadministrative law. His first challenges addresses challenge addresses the
\ncomplexity of administrative law remedies and institutions that individuals
\nhave to manage when dealing with the government. McMillian lists independent
\nagencies[1]<\/a>
\ncreated by statute to oversee decisions and actions of executive agencies. He
\nargues that most of these agencies have been created in response to changes in
\nthe government and in public expectations. He notes that it is conventional to
\nclassify these agencies as executive agencies[2]<\/a>
\nand that these executive agencies are non-traditional in the implementation of
\npolicies and programs of the government. Within this McMillian argues that
\nthese executive agencies are a fourth branch of government- \u201cthe oversight, review and integrity branch\u201d and
\nthat acknowledgment of this would \u201cenhance\u201d administrative justice<\/em>. [3]<\/a> It would enhance administrative justice to
\nreadjust our constitutional theories to take account of this new and effective
\nsystem for control of government action.[4]<\/strong><\/a><\/em><\/p>\n

McMillian states that administrative law
\nreview works best when a clear decision maker makes a \u201cdiscrete and
\nchallengeable decision\u201d , but that many decisions that are needed to be made
\nare not of this kind because of the community and the way the individual is
\neffected by the government has changed from the birth of administrative law and
\nwill continue to change in  a
\n\u201cqualitative and qualifiable\u201d way.  He
\naddresses some of the changes effecting administrative law include the freedom
\nof information act, privacy legislation, creation of a new migration scheme and
\noversight agencies. But that ombudsmen, tribunals, review by courts and
\noversight mechanisms are they key stones of administrative law and are still
\nimportant<\/p>\n

Creyke and Groves see the that the creation of agencies have been
\nin response to changes in the government and in public
\nexpectations has created an administrative law revolution. While
\nMcMillian has argued that these agencies should be a forth branch of government
\nCreyke and Groves focuses is on the states and territories adoption of
\naccountability packages based on the commonwealth for administrative law. This
\npackage includes and ombudsman or parliamentary commissioner, anti-
\ndiscrimination laws. Cryeke and Groves argue that Australia has a \u201cvibrant
\nadministrative law\u2019 system that should be valued as the system offers \u201credress\u201d
\nwhen an individual has an issue with the government. In summary Australia
\nnationally and in the states and territories has a robust system of
\nadministrative law. That system offers redress when citizens complain that
\ntheir rights and interests have been thwarted by government. But vindication of
\nindividual rights is not the only interest being protected. <\/p>\n

\n

\u201cAdministrative justice requires that the courts, tribunals, investigative bodies and ombudsman offices, while administering the values of fairness, rationality, transparency, impartiality and accountability that underpin good administration, also allow for government to operate in an efficient and effective manner<\/em>.\u201d <\/p>\n<\/blockquote>\n

Tribunal and Judiciary and alternative dispute resolution <\/h2>\n

The judiciary, tribunal and dispute resolution are essential to
\nadministrative law intuitions as they provide a mechanisms or recourse for an
\nindividual dealing with the government. Each have their benefits and their limitations,
\nbut they do provide recourse for an individual to seek justice against the
\ngovernment.  <\/p>\n

Tribunal <\/em><\/h3>\n

It is well recognised that for essential effective administration is the ability to have access to the reason for an adverse decision. Cryke and Groves argue that this right is not protected as there is no common law<\/a> protection but there is legislative protection in the Administrative Decisions (Judicial Review) Act or the Administrative Appeals Tribunal Act. (AAT). The AAT is outside the main court system and it operates in a court like fashion\u201d but does not exercise judicial power. Cryke and Groves predict that there would be an \u201d increased convergence of the adjudicative arms of government\u201d  with reforms considering  and encouraging  efficiency and cost to favour \u201cmechanisms for review outside the mainstream court system.\u201d However, the High Court has warned against \u201ctransposing the doctrine of public immunity to the AAT. It should also be noted that there is a distinction between state and judicial power. This is significant for tribunals because it will \u201ccontinue to define what functions may and may not be invested in tribunals.\u201d  In the words of  Gleeson CJ \u201cthe development of a strong system of tribunals has complemented the judicial review roles of the courts because it:<\/p>\n

\n

\u2026 relieves the judicial branch of pressure to expand judicial review beyond its proper constitutional and legal limits. Federal courts can mark out and respect the boundaries of judicial review more easily where there is a satisfactory system of merits review. This has beneficial consequences for the relations between the three branches of government, and relations between the judicial branch and the public\u201d <\/em><\/p>\n<\/blockquote>\n

Judiciary <\/em><\/h3>\n

The judiciary provides  legislative
\nprotection and the high court has jurisdiction to grant remedies, and the statutory judicial review scheme (this mostly mirrors the grounds
\nfor review and remedies available under the general law of the Constitution. [5]<\/a>).
\nBut there is a limitation to judicial review as its remedy is only
\nprocedural in nature. The problem with this is decisions are not decided on
\ntheir merits but on procedural rules. This becomes important if an individual
\nis seeking judicial recourse against soft law. It becomes unenforceable  under judicial review.  Weeks cites the High Court narrow approach in
\nTang as an example of soft law not being enforceable by
\nusing the rule of improper fettering of discretion: [6]<\/a>
\nThat soft law is intra vires, subject to the prohibition of fettering. And that
\nin this there is a balance that needs to be struck between the merits of the
\ncase but no giving the impression of \u201carbitrariness by allowing different
\nresults in cases that are substantially similar.\u201d Weeks then uses Aaronson and
\nGroves to suggest that the rule of fettering be modified to allow for the
\ndevelopment of consistent discretionary powers. He concludes this argument by
\nacknowledging while its persuasive it challenges the \u201cjudicial review mantra.\u201d
\nBut that the prohibition of fettering stops the soft law from being treated the
\nway as hard law in court proceedings and that it us at odds with \u201clike cases\u201d
\ntreating \u201csubjects consistently\u201d. Weeks then uses MLC Investments v
\nCommissioner of Taxation to make the argument that failing to adhere to soft
\nlaw dispensed by a public authority to which a decision maker works to looks
\narbitrary. And that all is needed to overcome the inability to use soft law is
\nthat the decision maker has regards for the merits of an individual case,
\nrather than to apply statutory discretion mechanically. Though he finishes his
\nargument with \u201c It is unclear exactly how
\na court would bring about this end<\/em>.\u201d  Weeks fear of administration law looking
\narbitrary is at odds with Cryke and Groves prediction that there
\nwill be more proportionate dispute resolution. 
\nThe effect of this will be to find an appropriate cost-effective
\nsolution to resolve a dispute. This could be an investigation, tribunal review,
\ninternal, or a negotiated outcome. Section 10(2)(b)(ii) of the Administrative
\nDecisions (Judicial Review) Act already allows for the Federal or magistrates court
\nto not hear a matter if there is a suitable alternative, though it is rarely
\nused. The Access to justice (civil litigation reforms) act 2009 (cth)
\nintroduced amendments to clarify that the overreaching purpose of the Federal
\nCourt of Australia act 1976 (cth) is to efficiently, quickly, and inexpensively
\nachieve a just resolution of disputes according to law. <\/p>\n

Alternative dispute resolution<\/em><\/h3>\n

Cryke and Groves predict that proportionate dispute resolution
\nwill see a rise in alternative dispute resolution. In the major jurisdictions
\nmodel litigant principles require alternative methods of solving disputes be
\nused when possible. This is to solve matters at the earliest possible stage.
\nThis can be seen in the AAT offering conferencing, mediation, conciliation,
\ncase appraisal and neutral evaluation. 
\nThere are some \u201cdetractors\u201d that include denial of exposure of error,
\nthe making of unlawful decisions, detracts from the normal role of courts and
\ntribunal. <\/p>\n

McMillian is on the same page as Cryke and Groves and argues
\nthat the if traditional stereotypes of accountability and justice in
\nadministrative law are followed in today\u2019s society then administrative justice
\nwill be \u201champered\u201d . He believes a solution to and a way of \u201cstimulating
\ncultural change\u201d in administrative law is to rethink the constitutional
\nunderstanding of the role of oversight agencies. <\/p>\n

Ombudsman <\/h2>\n

It is not just the AAT  or alternative dispute resolution that that
\nprovides an alternative to judicial review. The ombudsman provides an avenue of
\nrecourse for the individual against the government. <\/p>\n

The ombudsman is a \u2018non-judicial
\naccountability\u2019 body that can be described as an \u2018element of the integrity
\nbranch of government. It is Swedish in origin but has a strong connection by
\nanalogy to the Chinese Civil Service \u2018supervising\u2019 branch. The ombudsman preforms
\nintegrity functions, as well as dealing with individual complaints.  [7]<\/a><\/p>\n

McMillian when he outlines five changes
\nthat should underpin a new approach to administrative law with a focus on
\nexternal measures includes the ombudsman recommendations in this new
\napproach  as well as complaint handling,
\nfinancial remedy and compensation. McMillian seers Complaint handling through
\nombudsmen and similar oversight agencies 
\nas an efficient, low cost and flexible way to handle problems that
\ninvolve more than one agency .[8]<\/a>\n<\/p>\n

McMillian sees the ombudsman as a way of
\nmoving forward for administrative law  as
\nthere is already a high rate of acceptance of ombudsman recommendations. He
\nsees the advantages of using an ombudsman as providing an avenue of complaint
\nfor the individual, as the ombudsman can provide recommendations that are not
\navailable through the courts. He sees these recommendations or remedies as
\nproviding a better solution to the individual as they can: communicate an
\nexplanation to the public effectively, can expedite an application, revise
\napplication forms, re write administrative procedures, establish cross handling
\nagency issues. These things provide a practical remedy to the individual and
\ncan improve administrative standards to reduce future or the risk of future
\nerror. <\/p>\n

McMillian The ombudsman unlike the courts
\nwho can on deal with issues raised before them can ensure that the agency is
\ntaking an appropriate response to a recommendation. Traditional administrative
\nlaw remedies (a decision is substituted, there is a declaration of the rights
\nof the parties and the law, a direction of an agency to reconsider a matter, an
\ninjunction restraining unlawful action\/mandatory order for agency to act
\nlawfully. McMillian argues that these remedies can not and are not adequate in
\ndealing with contemporary issues and problems that arise from interactions
\nbetween the individual and the government. He furthers his argument by
\nacknowledging that sometimes the individual will just need an apology or to
\nexpedite an action, all these he sees are encased in the trend of an ombudsman
\ncomplaint handling.<\/p>\n

McMillian 
\nin doing so discusses the role of the ombudsman and the fact that it is
\nthe only administrative law agency that can review decisions made under
\nexecutive schemes. He argues that this is a concern because of the inability to
\ndistinguish the importance and effect of decisions made under executive and
\nstatutory scheme. He adds substance to his argument of the complexity of
\nadministrative decisions made under the executive by stating that executive
\ndecisions may not be well drafted, not subject to parliamentary scrutiny, not
\navailable for publication.[9]<\/a>
\nFinally McMillian sees a real problem in the executive interpreting and
\napplying the rules as this can bring conflict in objectivity of the decision
\nmaker. All these factors can make it difficult for the individual and the
\ngovernment to discern the rules derived form the executive, especially if these
\nrules are constantly evolving. <\/p>\n

Weeks argues that the practical limitations
\nof the ombudsman does not mean that the office does not investigate thousands
\nof complaints and that for each of these complaints the ombudsman tries to find
\na remedy. While an ombudsman cannot impose binding declarations on public
\nauthorities due to the Constitutional separation of powers this seems to be not
\nan issue. Weeks argues that not being able to provide traditional remedies is
\nno an issues as they are regarded as \u201cill adapted\u201d to help an individual who
\nneeds support from an administrative law point of view. This is because the
\nombudsman is not restricted to statements of legal right and has more
\nadaptability to help an individual affected by the application of soft
\nlaw.  While the ombudsman has no coercive
\npowers it is highly persuasive \u201cto obtain remedies, which may include \u2018an
\napology, financial compensation, proper explanation, reconsideration of agency
\naction, and expediting agency action\u201d<\/p>\n

CTTA Payments <\/h2>\n

Weeks argues that the ombudsman can
\nrecommend that a public authority financially compensate an individual who has
\nhad a loss as a result of \u201cdefective administration action\u201d These are legal
\nlimits on the ability of the government to remedy injustice but the CDDA Scheme
\ncan override this. The CDDA is a \u2018is a valuable and important means of securing
\nadministrative justice in a complex system\u2019, and is important where an
\nindividual has relied on soft law but cannot enforce it. <\/p>\n

Weeks argues two alternate remedies to
\njudicial review for soft law The ombudsman and payment of ex gratia
\ncompensation by the government. <\/p>\n

McMillian compensation available through
\nthe Scheme for Compensation for Detriment caused by Defective Administration
\n(CDDA scheme) executive scheme. These decisions are not appealable to the AAT
\nor reviewable under the ADJR Act. The premise of this scheme is government
\nagencies can pay compensation on a discretionary basis to individuals or groups
\nwho have suffered loss as a result of poor administration. <\/p>\n

McMillian Financial remedies occur when an
\nagency imposes a penalty or raises a debt. The ombudsman has the ability under
\nthe Financial Management and Accountability Act 1997 ss 34 and 47 to waive
\npowers conferred by legislation upon agency. This power not only fives the
\nombudsman the tight to waive a debt but it can allow the ombudsman administer
\nan objective in administrative law to \u201csimulate better decision making beyond
\nthe matter under review\u201d . The importance of the ombudsman to simulate decision
\nmaking is important because an error made in one case is likely to be repeated
\nin other cases. The ombudsman having this power provides a formal mechanism for
\nevaluation and accountability of appropriate changes occurring. A court or tribunal
\non the other hand can set a precedent but it can only reach that individual in
\ncourt at the time. The ombudsman can reach all the people effected by a decision
\nthat needs reversing. <\/p>\n

 McMillian
\nargues that the if traditional stereotypes of accountability and justice in
\nadministrative law are followed in todays society then administrative justice
\nwill be \u201champered\u201d . He believes a solution to and a way of \u201cstimulating
\ncultural change\u201d in administrative law is to rethink the constitutional
\nunderstanding of the role of oversight agencies. <\/p>\n

\n

[1]<\/a> auditors-general, ombudsmen,
\nprivacy commissioners, human rights and anti-discrimination commissioners,
\npublic sector standards commissioners, inspectors-general and corruption
\ncommissions<\/em><\/p>\n

[2]<\/a> with their function being to oversee and investigate complaints
\nagainst executive agencies<\/p>\n

[3]<\/a> http:\/\/classic.austlii.edu.au\/au\/journals\/AIAdminLawF\/2010\/5.pdf<\/a>
\n2010 <\/p>\n

[4]<\/a> http:\/\/www.hcourt.gov.au\/assets\/publications\/speeches\/current-justices\/gagelerj\/9781107692190extract.pdf<\/p>\n

[5]<\/a> the constitutional writs of mandamus and prohibition and the
\nequitable remedy of injunction, a flexible remedy able to prohibit
\nadministrative action where the applicant’s interests are at stake. Also the
\nHigh Court has jurisdiction ancillary to that granted by s 75(v) of the
\nConstitution to grant the writ of certiorari in order to ensure the
\neffectiveness of the constitutional writs. It also has an inherent power to
\ngrant declaratory relief. The availability of one or more of these remedies is
\ngenerally proved by proving breach of at least one of the set grounds of
\njudicial review.<\/p>\n

[6]<\/a> Traditionally a
\ndecision-maker who inflexibly applies rules or policies and does not listen to
\nsubmissions that an exception be made is committing a jurisdictional error.
\nThis is usually justified on the preferability of statutory discretions granted
\nto public decision makers, even by their own decisions, not to be fettered when
\nreaching a decision for the benefit of the public.  Usually the no fettering principle is invoked
\nwhere the decision maker imposes restraints on themselves by adhering to the
\nterms of a soft law instrument to which narrows the scope of discretion to the
\npoint that they don\u2019t take into consideration the merits of an individual case.
\nFettering works both ways in as much as a decision maker will not commit a
\njurisdictional error by not honouring an individuals expectation that the terms
\nof the soft law will be adhered to. Jurisdictional error occurs when a rule is
\napplied consistently but without regards to the merits of an individual case. <\/p>\n

[7]<\/a> Weeks <\/p>\n

[8]<\/a> The Australian Standard and better practice guides published by
\nOmbudsman and other offices set the principles. <\/p>\n

[9]<\/a> under the Legislative Instruments Act 2003 (Cth).<\/p>\n","protected":false},"excerpt":{"rendered":"

Administrative law in Australia is complex and might be confusing to the ordinary observer, but so are the government and the laws they seek to regulate. <\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[37],"tags":[90],"class_list":["post-485","post","type-post","status-publish","format-standard","hentry","category-free-law-essaysadministrative-law","tag-au-law"],"yoast_head":"\nIssues in Australian Administrative Law | LawTeacher.net<\/title>\n<meta name=\"description\" content=\"Administrative law in Australia is complex and might be confusing to the ordinary observer, but so are the government and the laws they seek to regulate.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" 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